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1 Living with the oceans. – A report on the state of the world's oceans

Legal issues

Legal issues in marine medical research

> In response to the growing interest in marine substances, legal scholars are trying to clarify which state has the right to exploit these resources. The main issues concern where the organisms are found, and the extent to which a natural substance or gene sequence can be patented. The fact that different patenting rules apply in different parts of the world further complicates matters.

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What makes the substances so interesting

Interest in the genetic resources found on the deep seabed has increased dramatically in recent years. They include microorganisms which occur in enormous quantities around hydrothermal vent sites, known as black smokers (Chapter 7) on the ocean floor. In complete darkness the microorganisms produce biomass from carbon dioxide and water. The energy they need for the conversion of carbon dioxide is extracted/obtained from the oxidation of hydrogen sulphide that discharges from the sea floor via the black smokers. Experts call this type of biomass production “chemosynthesis”. In contrast, plants produce biomass by photosynthesis, which is driven by energy-rich sunlight.
Chemosynthetic bacteria are of great interest, as they possess unique genetic structures and special biochemical agents which could play a key role in developing effective vaccines and antibiotics, or in cancer research.
It would also appear desirable from the industrial sectors point of view to exploit these organisms. After all, the bacteria which are active at the black smokers can tolerate high water pressures and extreme temperatures. Heat-stable enzymes have now been isolated from these resilient extremophilic bacteria and could potentially be used by industry. For instance, many manufacturing processes in the food and cosmetic industries operate at high temperatures, and heat-resistant enzymes would greatly simplify these. The ability to convert and thus detoxify deadly poisonous hydrogen sulphide into more benign sulphur compounds makes the chemosynthetic bacteria even more attractive.

Who “owns” the marine substances?

Against this background, one key question arises: who has the right to utilize and research the genetic resources of the deep seabed? International law initially differentiates only according to country of origin. If a scientific research institute applies to collect samples of deep sea organisms during an expedition, its activities are attributed to the flag state of the research vessel. Alternatively, the country of origin of the syndicate or biotechnology enterprise involved is the determining factor.

Where the sample microbes are to be taken from is also relevant. According to the United Nations Convention on the Law of the Sea (UNCLOS) (Chapter 10), marine scientific research in the exclusive economic zone generally requires the consent of the coastal state. Provided these are required purely for research purposes, the coastal state should allow third countries to take samples from the waters over which it exercises jurisdiction. In the event that the research findings could ultimately have commercial potential (bio-prospecting), the coastal state may exercise its own discretion. In case of doubt it may withhold its consent to the conduct of the activities in its waters. This applies particularly to measures which are of direct economic significance, such as the exploration of natural resources: in other words, exploring the seabed with the intention of exploiting its resources.

9.14 > Some microbes, e.g. the single-celled archaea, live in the vicinity of hot springs. Some contain substances which lend themselves to industrial production. Certain marine bacteria can be used to manufacture polymers, special synthetics which could even be utilized for future cancer therapy. © Derek Lovley/Kazem Kashefi/Science Photo Library/Agentur Focus
9.14 > Some microbes, e.g. the single-celled archaea, live in the vicinity of hot springs. Some contain substances which lend themselves to industrial production. Certain marine bacteria can be used to manufacture polymers, special synthetics which could even be utilized for future cancer therapy.
9.14 > Some microbes, e.g. the single-celled archaea, live in the vicinity of hot springs. Some contain substances which lend themselves to industrial production. Certain marine bacteria can be used to manufacture polymers, special synthetics which could even be utilized for future cancer therapy. © Thierry Berrod, Mona Lisa Production/Science Photo Library/Agentur Focus

In the case of maritime regions beyond the limits of national jurisdiction, the legal situation is less clear-cut. Who has the right to exploit the biological resources of the high seas, and the legal provisions that should govern such activity, have long been matters of dispute within the international community. This includes those areas far from the coast where the black smokers are to be found, such as the mid-ocean ridges. The problem is that none of the international conventions and agreements contains clear provisions on the exploitation of genetic resources on the ocean floor. For this reason one section of the international community considers that they should be fairly shared between nations. The other, however, believes that any nation should have free access to these resources. Clearly, these views are diametrically opposed.

With regard to the deep seabed, the United Nations Convention on the Law of the Sea (UNCLOS) stipulates that “the area of the seabed … beyond the limits of national jurisdiction, as well as its resources, are the common heritage of mankind”. But this provision applies only to mineral resources such as ores and manganese nodules. If a state wishes to exploit manganese nodules on the deep seabed (Chapter 10), it must obtain a licence from the International Seabed Authority (ISA) and share the benefits with the developing countries. This explicit provision does not apply to genetic resources on the deep sea floor, however.
On the other hand, the Convention on Biological Diversity (CBD) adopted in Rio de Janeiro in 1992 calls for “the fair and equitable sharing of the benefits arising out of the utilization of genetic resources”; in other words, nature’s biological bounty should be shared fairly between the industrialized nations and the developing countries. However, this objective refers only to the area within the limits of national jurisdiction and not to maritime regions far from land. >
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